Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Or. Rev. Stat. §§ 125.025(3), 125.080(4), 125.090(1)
Right to Counsel Definition in Statute:
(3) A court having jurisdiction over a protective proceeding may (b) appoint counsel for a respondent or protected person. Or. Rev. Stat. § 125.025. (1) A protected person is entitled to the same rights and procedures provided in the original proceedings when a motion to terminate the protective proceeding is filed and a fiduciary opposes the motion. Or. Rev. Stat. § 125.090.
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
(a) the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Ore. Prof. Conduct Rule 1.14.
Other Case Law:
Imposing a guardianship deprives a person of “precious individual rights.” To protect those rights, the legislature has created a statutory process that surrounds the creation of guardianships with extensive procedural safeguards and substantive requirements. A petitioner seeking to create a guardianship must establish that the proposed protected person is incapacitated. That definition requires a petitioner to prove three things: (1) the person to be protected has severely impaired perception or communication skills; (2) the person cannot take care of his or her basic needs to such an extent as to be life-or health-threatening; and (3) the impaired perception or communication skills cause the life-threatening disability. Thus, a person who is unable to care for herself because of physical deterioration cannot for that reason be subjected to a guardianship, nor can a person who has trouble processing information if she can still take care of herself. The key is the nexus between the inability to process and communicate information, on the one hand, and the inability to perform essential functions, on the other. Further, a person over whom a petitioner seeks to establish a guardianship enjoys a presumption of competency [which] may be relied upon until the contrary is shown. See Schaefer v. Shaefer, 183 Or.App. 513, 516-517 (2002).
Other Important Info:
(2) The court shall make a guardianship order that is no more restrictive upon the liberty of the protected person than is reasonably necessary to protect the person. Or. Rev. Stat. § 125.305.